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In the latest development of the Italian Marines case, the Supreme Court of India ordered the Italian Ambassador, Daniele Mancini, not to leave the country. This order, which is supposed to be in effect until March 18, is probably to give the SCI time to decide whether it wants to prosecute Mancini for contempt of court because the two marines he had stood as guarantor for will not be returning to India to stand trial. It is not clear what else this restraining order implies, or how the order is to be implemented, but India’s foreign minister, Salman Khurshid, has rushed to say that his government will comply with the Supreme Court’s orders. Interestingly, the former secretary-general of the Lok Sabha, Subhash Kashyap, has also been roped in to say that the SCI’s order is perfectly legal despite the Ambassador’s diplomatic immunity.

The last-minute face-saving exercise mounted by both the Government of India and the Supreme Court is not only farcical but also deeply embarrassing and probably illegal. As everyone and their grandmother knows by now, the Vienna Convention on Diplomatic Relations of 1961 expressly prohibits the mistreatment of diplomats. Article 29 states clearly, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Furthermore, Article 31 provides, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” However, though the article extends “immunity from…civil and administrative jurisdiction,” it stipulates three exceptions: 1. an action involving immovable property in the host state the diplomat is not holding on behalf of his state; 2. if the diplomat is involved as an executor, administrator, heir, or legatee as a private person and not on behalf of his country; and 3. any professional or commercial activity in the host state by the diplomat in his personal capacity, outside his official functions. Furthermore, as Article 32 states, a diplomat cannot claim immunity in the case of a counterclaim against a claim he has initiated.

Is diplomatic immunity absolute? Can diplomats act with impunity under the cover of their special status? In the landmark case of Empson v Smith, the judge ruled that “diplomatic immunity is not immunity from legal liability, but immunity from suit,” meaning that Mancini is expected to respect the laws of his host state and were he not to, the Italian Ambassador would be liable for his actions but cannot be sued unless his immunity has been waived. This understanding has come under much dispute recently, particularly in cases of grievous wrongdoing such as murder or crimes against humanity. No matter, Mancini’s contempt of court is not tantamount to either murder or genocide. It is true, as Article 32 of the VCDR also states, that immunity can be waived. Yet this is, obviously, unlikely.

The discussions of the International Law Commission are also interesting in that they reveal the thinking behind the VCDR. As the noted Austrian diplomat and jurist Alfred Verdross remarked, “it was inappropriate to describe inviolability as an ‘abstract principle.’ The principle of inviolability was generally accepted and applied in practice, while ‘self-defence’ and ‘measures to prevent the diplomatic agent’ from committing crimes or offences’ were simply exceptions to the application of the principle. AEF Sandström, the Special Rapporteur of the ILC, added that it must be understood that a diplomatic agent might not always be able to claim inviolability. This is the sense in which diplomatic immunity and inviolability was understood. However, the VCDR makes no attempt to distinguish crimes according to their gravity or their corresponding degree of immunity.

Empson v Simith makes it clear that though the Court may not proceed against a diplomat while s/he holds immunity, the proceedings are not null and void – the Court may, upon termination of immunity, revive the proceedings against the diplomat. This can be done even though he was entitled to immunity when the events concerned took place or when process was originally begun. Such action is not post facto since it was merely waiting for the procedural hurdle of diplomatic immunity to be removed. While personal inviolability is a physical privilege, diplomatic immunity is a procedural obstacle.

Although Kashyap claims that Mancini lost immunity when he stood as a guarantor for the return of Massimiliano Latorre and Salvatore Girone, the SCI record shows that Mancini did so as a representative of the Italian government, not in his private capacity, thus not being subject to the exceptions stated in Article 31 of the VCDR: “petitioner No.3, the Ambassador of Italy to India…Daniele Mancini…representing the applicant No.3…” However, the SCI may indeed argue that a crime has not been committed until the two Italian marines violate their return date, and restraining Mancini is merely an exercise of its right to “prevent the diplomatic agent from committing crimes or offences” despite the declared intent not to return by the Italian Foreign Ministry. This would raise the question, what will the SCI do after the date has passed? Will Manicini be free to leave? If so, the SCI notice to the Italian Ambassador is merely knee-jerk and symbolic.

There is also this to be asked – what does the GoI hope to gain by enforcing a symbolic gesture on a technicality? Surely, one can admit that healthy relations between India and Italy warrant the overlooking of a technicality (if it exists)? Yet India’s Ministry of External Affairs has rushed to uphold a dubious decision, probably made in haste, by the SCI. The right course of action would have been for the United Progressive Alliance government to file an amicus brief with the SCI declaring that the GoI requests the Court to overlook Italy’s renegation in the case of the Italian marines in the interests of India’s relations with a foreign power. Since foreign relations fall within the purview of the Executive, such a brief would be well within its rights to issue.

The unfortunate reality is that both the UPA government and the SCI have been caught with their pants down in this incident. In an effort to conceal and whitewash their incompetence, perhaps with an eye on the upcoming elections, the UPA has instead launched a blustering attack on the Italian government and taken refuge behind an ill-conceived SCI notice. Such behaviour will only lower India’s esteem in the international community. And yes, we voted, by omission or commission, for this government.

This post appeared on Tehelka on March 15, 2013.